Timeline of an Estate: Tax and Other Considerations

Being entrusted to be an Executor is an honour – it means that the deceased believes that you are the best suited person to manage and care for their estate. However, the position also comes with legal responsibilities and liabilities. The “job” of an Executor can last from a year or more, with or without contentious beneficiaries.

The Executor has many duties. This article focuses the notable deadlines and timelines. The “Administering the Estate” timeline focuses on the Grant of Probate process (if there is no Will, it is called a Grant of Administration). The “Tax” timeline focuses on what needs to be done at what point to alleviate the tax burden of the estate.

ESTATE ADMINISTRATION TIMELINE

Broadly speaking, in administering an estate, the Executor’s role is to gather the assets of the estate, protect them, ensure debts are paid, then distribute the assets. It seems simple enough. However, there are certain events and their timing that should be considered.

1.   A Notice to Claimants may be published in the local newspaper. The Executor is responsible for ensuring debts of the estate are paid before they distribute the assets to the beneficiaries. This notice “starts the clock” for any claimants who are owed money from the estate – they must contact the Executor within 30 days and formalize their claim.  After the 30 days, the Executor can move forward with the estate without worrying about claimants coming out of the woodwork. The Executor can be held personally liable if they distribute the estate to beneficiaries before ensuring all debts are paid.

2.     Apply for a Grant of Probate (or Administration). There is no “deadline” for applying for a Grant of Probate (or Administration) but certain institutions may refuse to acknowledge an Executor’s authority until a Grant of Probate is obtained. This may make it difficult to deal with the estate assets and debts without a Grant of Probate.[1] It takes time to compile the information for an application for the Grant and, once it is submitted to the Court, it can take 4-5 months to be processed. This is also assuming that no one contests the application.

3.    Family Maintenance and Supports claims. After the Grant of Probate is obtained, a family member[2], as legislatively defined, will have 6 months from the date of the Grant to make a family maintenance and support claim from the Estate. The basis of the claim is that the deceased failed to make adequate provision for the proper maintenance and support of the family member. If the Executor distributes the estate assets prior to this 6-month deadline (or prior to the matter being settled, if a claim is lodged), then the Executor will be personally liable to the family member for the estate assets they are found to be entitled to.

4.  Final Clearance Certificate. The Executor is responsible for ensuring debts of the estate are paid before they distribute the assets to the beneficiaries. One major debt of the estate is tax. After filing the terminal tax return and receiving the Notice of Assessment, the Executor should pay taxes owed and then apply for a final Clearance Certificate (if the Estate is designated as a graduated rate estate (see below), then the final Clearance Certificate is applied for when the Estate is almost ready to distribute). This Certificate is the CRA’s confirmation that all taxes have been paid. The Certificate may take 1 to 1.5 years to be issued. If the Executor distributes the estate prematurely, they will be personally liable for any taxes that are found still owing. It is recommended to wait until after the receipt of the final Clearance Certificate before distributing assets to beneficiaries. For more info, see here.

5.  Accounting.  Accounting is a very important task.  The Executor must provide an accounting to the beneficiaries every two years of their management of the Estate assets.  The law requires this accounting to take a particular form, so it is best to seek advice from experienced counsel. The Executor can have the accounting approved by the beneficiaries or by the Court.  By seeking this approval, the Executor’s liability for their management of the Estate assets during the accounting period is relieved.   

6.    Executor compensation. Executor compensation is a priority claim against the Estate and may be paid in priority to certain other debts.  Unless the Will expressly provides for the amount of executor compensation, compensation may not be taken absent beneficiary or Court approval. 

7.    Distribution to Beneficiaries – Once all of the debts of the Estate have been paid and the accounting approved, either by the beneficiaries or the Court, a distribution to the beneficiaries can occur. 

TAX TIMELINES

First and foremost, the Executor should hire a good accountant. Depending on the complexity of the estate, a tax lawyer may also need to be brought on. As mentioned above, taxes are usually owed by the Estate. This is because, for one, there is a deemed disposition of all capital property upon death (capital gains taxes incurred) and, second, any income of the deceased in the year of death will also attract tax (e.g. interest income, employment income, etc.).

Filing return

Terminal tax return (Final income tax return)

If the deceased died on or before October 31^st, then the terminal tax return is due April 30^th of the following year. (Or, June 30^th if the deceased was self-employed).

If the deceased died after October 31^st, then the terminal tax return is due 6 months after the death.

Other tax returns

Any returns that the deceased was responsible for, such as corporate tax returns or trust returns, may become the responsibility of the Executor if there are no other directors of the corporation, or other trustees of the trust. Be aware that:

·  A corporation’s T2 return filing deadline is 6 months after its tax year-end (but corporate taxes may be due 2 or 3 months after tax year-end). 

·   A trust’s T3 return filing deadline is 3 months after its tax year-end. Taxes are due at the same time.

Elective returns

In addition to the regular terminal tax return filed for the deceased, other optional returns can be filed. The benefits of filing multiple returns is, generally, certain tax credits can be claimed on each return (duplicating tax credits) and the income in each return will be subject to graduated rates (duplicating the lower tax rates).

1.  Rights or things return. Rights or things relate to income that the deceased was entitled to but had not yet been paid. For example, declared but unpaid dividends, or work in progress amounts. This return is due 1 year after death or 90 days after the Notice of Assessment for the terminal return, whichever is later.

2.     Income return from proprietor (business) or partner.  If the deceased died after the end of the business's fiscal period but before the calendar year-end (in which the fiscal period ended), you can file an optional return for the deceased. This return is due at the same time as the terminal tax return.

3.   Graduated Rate Estate (GRE) return. Discussed below. To be treated as a GRE, the Executor must designate the estate to be a GRE in a T3 trust return. The first GRE return is due at the same time as the terminal tax return. Subsequent returns are due in accordance with the T3 deadlines (3 months after tax year-end). 

For more information on optional returns, see the CRA site here.

Graduated Rate Estate

An estate is considered a trust for tax purposes. Subject to certain exceptions, trusts are taxed at the highest marginal rate. However, a GRE allows the estate to be taxed at graduated rates instead and they have more flexible donation rules.  Also, in order to avail the estate to certain tax elections and options, the shares of private corporation must be held by a GRE (discussed below).

An estate must be designated as a GRE. In order to qualify as a GRE, the following criteria must be satisfied during the entire duration of the GRE:

                 i.          the estate arose on and as a consequence of the individual’s death no more than 36 months after the death;

               ii.          the estate is at that time a testamentary trust;

             iii.          the deceased’s Social Insurance Number is provided in the estate’s Trust Return for each taxation year of the estate during the 36-month period after the death of the deceased;

              iv.          the estate designates itself as GRE of the individual in its Trust Return (GRE Return) for tax year of death; and

                v.          no other estate designates itself as the GRE of the deceased.[3]

A GRE, and its preferential tax treatment, will only last up to 36 months from death. It can be terminated earlier if it distributes all assets, or if the estate no longer satisfies all the above requirements.

Corporations: Options to avoid double taxation

If the deceased owned shares in a private corporation at death, then there may be double taxation (tax at the deemed disposition at death, and tax upon extracting the funds from the corporation to pay the beneficiaries). There are certain strategies to avoid this double taxation.  The two most common are:

1.  Loss Carryback 164 Election. The deemed disposition at death will increase the adjusted cost base of the shares to fair market value. The Estate (GRE) then redeems the shares in the corporation, creating a deemed dividend and a capital loss. This capital loss is then carried back to net against the capital gain at death. The 164 election to carryback the capital loss must be included on the terminal return, meaning this option must be completed within 1 year after death.

2.    Pipeline (post-mortem). A pipeline requires a new corporation to be created (NewCo) in addition to the private corporation already owned by the deceased (PrivCo). The NewCo will acquire the shares of the PrivCo from the Estate (GRE) in exchange for a promissory note or preferred shares. Later on, NewCo will then use the assets originally in PrivCo to pay off the promissory note.  The is no “deadline” for this transaction but there is a timeline. The NewCo and PrivCo must exist for at least 1 year (we recommend longer, such as 3 years). The assets should not be distributed to the beneficiaries until after the 1-3-year period. Therefore, it is better to start this process sooner than later.

Both options are complex and carry risks and benefits. The above explanations are very generalized overviews. The risk of double taxation, and the complexity associated with avoiding it, means a tax practitioner should always be consulted as soon as possible if an estate includes shares of a private corporation.

Rollovers: Spouse and Farm or Fishing Property

Upon death, the deceased is deemed to have disposed all his or her capital property at fair market value. This will often trigger tax for capital gains and recapture (if depreciable property).

However, there are two main exceptions where the property is deemed to be transferred at cost instead:

·      Rollover to a spouse, common-law partner, or qualified spousal trust. To qualify for this rollover, the property must vest indefeasibly in the spouse, common-law partner or trust within 36 months after death. The “default” rule is that the transfer will occur at cost if it qualifies (no election required) but the Executor may elect out of this default rule and the transfer will then occur at fair market value.

·      Rollover of farm or fishing property from parent to child. To qualify for this rollover, the property must be qualified farm and fishing property[4], the recipient child must be a Canadian resident immediately before the deceased died, the property must have transferred to the child as a consequence of the deceased’s death, and the property must vest indefeasibly in the child within 36-months after death. The “default” rule is that the transfer will occur at cost (no election required) but the Executor may elect to have the transfer occur at any value between cost and fair market value.

In both exceptions, it is possible for the Executor to elect for the transfer to occur not at cost. This is usually done to trigger capital gains tax which can then be offset with the deceased’s lifetime capital gains exemption. For the capital gains exemption to apply, the property must be eligible property and the deceased must still have a capital gains exemption balance at death.[5], [6]

CONCLUSION

Acting as Executor can be time-consuming, onerous and complicated. This article aims to highlight the deadlines that must be met and to demonstrate that administering an Estate can take a long time, even for the most organized. Therefore, it is generally better to start earlier than later.

The McLennan Ross Wills & Estates Group and Tax Group would be happy to assist you in dealing with your Executor’s duties as well as the various tax issues that may apply to the estate. Please contact our office.